ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division for a contested case hearing. The Respondent Floyd R.
Moore d/b/a Tri-County Amusements challenges the issuance of the South Carolina Department of Revenue's Final
Determination dated January 31, 2000 revoking two Type III video poker machine licenses for issuing a payout to a person
under the age of twenty-one in violation of S.C. Code Ann. § 12-21-2804(C) (Supp. 1999). A hearing was held on this
matter on June 5, 2000 at the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina. At the
hearing, counsel for the Petitioner moved to dismiss the Respondent, Liberty Port Social Club, d/b/a Dianne's Fantasy
Factory for failure to request a contested case hearing. The Petitioner's motion was granted.
STIPULATIONS OF FACT
At the hearing in this matter, counsel for both parties submitted the following stipulations of fact:
1. Liberty Port Social Club, d/b/a Dianne's Fantasy Factory, is located at 2758 Spruill Avenue in North Charleston, South
Carolina.
2. Liberty Port Social Club operates under retail sales tax license #010-42925-3.
3. Liberty Port Social Club operates under video games licensed establishment #85510825-9.
4. Floyd R. Moore, d/b/a Tri-County Amusements owns the Type III coin-operated devices in issue in the above-captioned
case with Type III coin-operated device licenses #3002809 and #3002815.
5. Floyd R. Moore, d/b/a Tri-County Amusements has no involvement in the ownership or management of the Liberty Port
Social Club d/b/a Dianne's Fantasy Factory other than ownership of the Type III machines listed in Stipulation of Fact #4.
6. On November 18, 1999, the two Type III coin-operated devices at issue in the above-captioned case with Type III coin-operated device licenses #3002809 and # 3002815 were available for use at Liberty Port Social Club.
7. On November 18, 1999, Roseann Stevenson was an employee of the Liberty Port Social Club d/b/a Dianne's Fantasy
Factory.
8. On November 18, 1999, at approximately 9:30 p.m., an underage cooperating individual (UCI) named Michael Tirrell
Gordon and working in conjunction with the Charleston County Sheriff's Office and the South Carolina Law Enforcement
Division (SLED) played one of the aforementioned Type III coin-operated devices at the Liberty Port Social Club d/b/a
Dianne's Fantasy Factory.
9. On November 18, 1999, UCI Gordon was seventeen (17) years old.
10. On November 18, 1999, UCI Gordon tendered a payout ticket to the attendant Roseann Stevenson working at the
Liberty Port Social Club d/b/a Dianne's Fantasy Factory.
11. The ticket was generated from the Video Poker Machine the UCI was playing.
12. In exchange for the ticket, Roseann Stevenson provided UCI Stevenson the cash payout represented on the ticket in the
amount of Eighteen and 35/100 ($18.35) Dollars.
13. After the UCI exited, SLED Agent J. Ramey entered the Liberty Port Social Club d/b/a Dianne's Fantasy Factory with
members from the Charleston County Sheriff's Office and issued a Preliminary Findings Report for violation of S.C. Code
Ann. §12-21-2804(C).
14. The payout ticket in issue was retained as evidence by law enforcement.
15. An Agency Initial Citation was issued to the Respondents on December 15, 1999.
16. Respondent Liberty Port Social Club d/b/a Dianne's Fantasy Factory transmitted a protest of the Agency Initial Citation
on January 13, 2000.
17. Respondent Floyd R. Moore d/b/a Tri-County Amusements transmitted a protest of the Agency Initial Citation on
January 10, 2000.
18. Petitioner issued an Agency Final Determination on January 31, 2000.
19. Only the Respondent Floyd R. Moore d/b/a Tri-County Amusements requested a hearing before the Administrative Law
Judge Division; this request was made on March 2, 2000.
FINDINGS OF FACT
Taking into account the stipulations between the parties, having carefully considered the testimony and the arguments of
counsel, and taking into account the credibility of the evidence and witnesses, I find by a preponderance of the evidence:
1. Notice of the time, date, place, and subject matter of the hearing was given to all parties in a timely manner.
CONCLUSIONS OF LAW
Based upon the foregoing Stipulations and Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 1999) grants jurisdiction to the Administrative Law Judge Division to hear contested
cases under the Administrative Procedures Act.
2. The The Video Games Machine Act, which regulates video game activity in South Carolina, was enacted in 1993 and
became effective July 1, 1993. The Act is codified at S.C. Code Ann. § 12-21-2770, et seq. (Supp. 1999). The express
purpose of the Video Games Machine Act is to regulate the video games machine industry in South Carolina.
3. In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 2 Am. Jur. 2d
Administrative Law § 360 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases
(1999). The Department is the party asserting the affirmative in this case; therefore, the Department must prove by a
preponderance of the evidence that Respondent violated § 12-21-2804(C), by tendering a payout to someone under the age
of twenty-one. See Anonymous v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998) (standard of proof
in an administrative proceeding is preponderance of the evidence).
4. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of
fact. See S.C. Cable Television Ass'n v. Southern Bell Telephone and Telegraph Co., 308 S.C. 216, 417 S.E.2d 586 (1992).
Furthermore, a trial judge, who observes a witness is in the better position to judge the witness's demeanor and veracity and
evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194
S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534,
320 S.E.2d 44 (Ct. App. 1984).
5. The Department contends the Respondents violated S.C. Code Ann. § 12-21-2804(C) which provides that "[n]o person
under twenty-one years of age may receive a payout as a result of the operation of the machines licensed under Section 12-21-2720(A)(3)." Because the UCI was seventeen at the time of the payout, I find that a violation of Section 12-21-2804(C)
did occur.
6. The Respondent, Floyd R. Moore, d/b/a Tri-County Amusements, contends that he should not be liable for the violation
of 12-21-2804(C) because he is merely the owner of the machine, not the owner of the premises where the violation
occurred.
7. S.C. Code Ann. § 12-21-2804(F) provides that "[t]he department shall revoke the licenses of any person issued pursuant
to the provisions of Article 19 of this chapter for a violation of subsection (C) of this section.
ORDER
Based upon the foregoing Stipulations of Fact, Findings of Fact, and Conclusions of Law, it is hereby:
ORDERED that the Final Determination of the South Carolina Department of Revenue in this matter is AFFIRMED;
IT IS FURTHER ORDERED that the Type III coin-operated device licenses numbered 3002809 and 3002815 are hereby
REVOKED.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
June 23, 2000
Columbia, South Carolina |
